Form Of Restitution Research Articles

Justice, Reciprocity and the Internalisation of Punishment in Victims of Crime

This paper is published as part of special issue on the theme of ‘justice without retribution’. Any attempt to consider how justice may be achieved without retribution has to begin with a consideration of what we mean by justice. The most powerful pleas for justice usually come from those who feel that they have been harmed by the wrongful acts of others. This paper will explore this intuition about justice and will argue that it arises from the central importance of reciprocity, in the form of equity, balance and fairness, in human relationships. This is expressed in our image of justice, one of whose core symbols is a set of scales. I will use a clinical case to illustrate what can happen when criminal harm is not followed by any form of restitution. In this case, the punitive impulse was internalised in the victim and turned against herself in the form of deliberate self harm and, ultimately, death by suicide. I will argue that human relationships largely consist of reciprocal acts of good or harm and that we constantly strive for a balanced reciprocity in our relationships with others. This theme has been played out throughout human history in personal relationships, social customs, legal systems, religion and culture. It is also seen in higher primates. When someone is a victim of wrongful harm, there is a need to take measures to restore the balance which has been lost. I will attempt to draw a distinction between retributivism as the term is usually understood and the application of the principle of reciprocity in criminal justice. This distinction is one that has found expression in what has become known as ‘restorative justice’ as opposed to conventional justice. There are two cardinal features of restorative justice in this context. The first is that it brings offender and victim into a relationship with the aim of repairing the harm that has been caused. The second is that it gives the offender the opportunity to give something back to his victim. I will conclude that our responses to criminal wrong-doing should be based on restorative principles and that punishment can sometimes be part of the process by which moral harm is made good.

PERLINDUNGAN HUKUM TERHADAP KORBAN HUMAN TRAFFICKING DALAM PERSPEKTIF HAK ASASI MANUSIA

This study discussed the forms of legal protection for trafficking victims in the perspective of human rights and the mechanism of providing restitution and legal protection for trafficking victims in the perspective of human rights. The study used normative legal method with statute and case approahes. The data analysis was descriptive qualitative. The results concludes that the legal protection for trafficking victims are in the forms of restitution, compensation, and rehabilitation, while some other forms of legal protection are not applicable due to various factors. One of the inhibiting factors is the absence of a clear mechanism for paying restitution to trafficking victims. Thus, Article 48 in Law No.21 of 2007 concerning Human Trafficking is not applicable so that either the article needs amendment or its implementing regulation is made, so that the rights of victims in the trial can be implemented

EFEKTIVITAS PEMBERIAN RESTITUSI TERHADAP KORBAN TINDAK PIDANA BERDASARKAN UNDANG-UNDANG NOMOR 31 TAHUN 2014 TENTANG PERLINDUNGAN SAKSI DAN KORBAN

Victims as the injured party as a result of a criminal act shall receive compensation, one form of restitution. Awarded restitution to victims to reduce the suffering of the victims as a result of criminal offenses committed by offenders, especially to the victims of criminal acts. This restitution was arranged in Law No. 31 of 2014 on The Protection of Witnesses and Victims. Related effectiveness restitution for victims of crime also a form of state responsibility in an effort to protect its citizens. This research aims to analyze the effectiveness of giving restitution for victim of crime and analyze those obstacles facing witness and victim protection agencies (LPSK) in the implementation of the provision of restitution based on Law Number 31 of 2014 about witness and victim protection. Based on the result of study, it is known that giving restitution for victims of this crime it is said to be effective, until the process of granting restitution for the offender to the victim, but about how gifted as well monitoring conducted by LPSK to the victim after receiving restitution, it is said to be less effective, because there is no data associated with it. Then, associated with those obstacles faced with LPSK in facilitating, the provision of assistance for victims the crime is lack of human resources and the lack of budged in the process of the facilitating the provision of restitution.

Perlindungan Hukum Bagi Korban Pemerkosaan dalam Qanun Aceh No. 6 Tahun 2014 Tentang Hukum Jinayat di Mahkamah Syar'iyyah Kota Langsa

Islam regulates legal protection for rape victims in the form of indemnity (as-shadaq) charged by the perpetrator of the dowry of mitsil. In the Criminal Code the legal protection in the form of restitution given to the victims is charged to the perpetrators who do not exceed the limits of his ability, but the country that compensates by considering the ability of the State. In Qanun Aceh No.6 regarding legal protection of victims in the form of restitution listed in Article 58 at most of 400 grams of pure gold, but in practice the mechanism of the procedure of restitution has not been sent to the Syar'iyah court of Langsa, and for compensation and rehabilitation funds, neither the State, the province nor the regions provide funding for such purposes. And for the psychological impact of the rape victim in the Syar'iyah court of Langsa the victim is traumatized, and if the victim recalls the rape she experienced, she often fainted, hit everything with her hand and dangled her head on the wall.

Restitutionary Road: Reflecting on Good Governance and the Role of the Land Claims Court

Although 95% of all claims that had been submitted by 1998 have indeed been processed, a mere 49% of the land that was restored since 1994 housed successful enterprises by the end of 2010. Accordingly, sixteen years into the restitution process the statistics are rather disappointing. Restitution of land as a land reform mechanism is a unique temporal process that involves various role players. This contribution focuses on the role that the Land Claims Court has to play within the context of “good governance”. In this regard the legislative and policy frameworks within which restitution and the Land Claims Court operate, are first set out after which the unique characteristics of the restitution programme are highlighted. Although the main function of the Land Claims Court is to grapple with and adjudicate on legal issues, it also has a role to play in effecting good governance. This may be done by its involvement in the legal process leading up to the finalization of claims by issuing directives, acting as a review forum and by removing land from the restitution process under section 34 of the Restitution Act. However, a more pro-active role may be played by the Court by its involvement in deciding the exact form of restitution or restoration in a particular case. In this regard the Court can find that restitution has to be conditional and that certain requirements have to be met in order for the process to be effective and successful. With reference to Baphiring Community v Uys and Others (Case number LCC 64/1998) it is clear that a pro-active approach would require the Court to engage in difficult, often conflicting, issues and to embark on in-depth investigations and analyses where necessary.

Working Women and the Changing Dynamics of Family: The Concept of Matrimonial Home Today

The Smritis regarded marriage as an essential sanskara (religious obligation). A wife was not just a patni (wife) or grihapatni (housewife), but a dharmapatni (sacred union) as well as the ardhangini (half of him) and without her, he was incomplete. However, during the last few years, many couples have embraced the trend towards egalitarianism in marriage without accepting its full implications. As a result of liberalization, social changes, education, awareness, modernization, evolution of nuclear families and economic strains, the dependence on the sole earning member of a family became heavy, which led to involvement of women in contributing towards the income of the family. Other reasons behind increase in working women include feministic movements (like those started by Raja Ram Mohun Roy, Rabindranath Tagore), western influence, increasing crimes against women like domestic violence, dowry deaths, policies encouraging women like reservations. In the western world, during the days of war and recession, women forsook their traditional roles as housewives and entered into labour force, thus enabling them to earn separately. Thus, the woman had to face the challenge of being a successful wife, mother and career woman. Women have always been financially dependent on their husbands since two distinct rights implicit in a marriage include the right to reside in the matrimonial home and the right to financial settlement at the termination of marriage. The patriarchal system demanding women to live under the roof of the husband was reflected in texts of Manu, Yajnavalkya, and Vishnu which enjoined that husband is the Lord for the wife whom she should obey and remain faithful forever. The texts of Hindu law say “let fidelity continue until death”. The wife was given the position as “the woman is half her husband and completes with him”. While the old Hindu law stressed on the wife’s implicit obedience to her husband, it did not lay down any procedure for compelling her to return to her husband against her will. The ancient notion of “Lord and Master” led to the concept which facilitated men to choose the matrimonial home. For a better understanding of the concept of “matrimonial home” a reference can be made to provisions laid down in section 9 of the Hindu Marriage Act, 1955 in the form of restitution of conjugal rights. This provides for restoration of the matrimonial home and the conjugal rights in case one of the spouses leaves the society of the other without any reasonable excuse. Matrimonial rights are the rights which husband and wife have towards each other, society, comfort and affection. Marital rights include the enjoyment of association, sympathy, confidence, domestic happiness, and comforts of dwelling together in the same habitation, eating meals at the same table and profiting by the joint property rights as well as the intimacies of domestic relations. But with increase in the number of working women, drastic changes have been noticed in the family as well as in the society and have affected the conjugal rights of the husband as well the matrimonial home. The scope of the paper extends to the Hindu law only. Detailed inclusion of maintenance has not been made owing to the fact that the rights of working women is not just about the economic aspect involved but also their right to work. The main focus has been on working women, conjugal rights of the husband and the choice of a matrimonial home in such cases. Within the family and change within, focus has been laid on the husband since the controversy arises when the wife leaves the husband’s home and not his parents’ home.

Intimate Enemies: Weetigo, Weesageechak, and the Politics of Reconciliation in Tomson Highway's <em>Kiss of the Fur Queen</em> and Joseph Boyden's <em>Three Day Road</em>

Intimate EnemiesWeetigo, Weesageechak, and the Politics of Reconciliation in Tomson Highway’s Kiss of the Fur Queen and Joseph Boyden’s Three Day Road Sophie McCall (bio) The ongoing Truth and Reconciliation Commission of Canada (trc Canada), struck in 2008, is part of the current global proliferation of discourses of reconciliation.1 Recent commissions in places such as South Africa, Chile, and Sierra Leone are suggestive of what Pauline Wakeham calls the “increasing co-optation of discourses of reconciliation by a hegemonic network of institutions and agents” (par. 1). In spite of a high level of scholarly and public interest, there is little agreement about what the term reconciliation means and how to initiate a transformative politics of reconciliation. Paulette Regan suggests that a “deep divide exists between Indigenous peoples and Canadians about what reconciliation is and how best to achieve it” (“Apology” 47): while Canada wants to “achieve legal certainty,” First Nations’ advocates highlight the need for reparations in the form of land, resources, and other forms of restitution (48). In Indigenous literary studies, the fissures in approaches to reconciliation stem from and echo other, overlapping tensions between those critics who argue for Indigenous nationalist positions, emphasizing the need for deeper engagement with tribal traditions of storytelling, governance, and cultural practice versus those who draw on postcolonial theories that focus on issues such as cultural hybridity, liminality, and white-settler complexes of guilt and complicity. For Indigenous nationalists, such as Taiaiake Alfred (Kanien’kehaka), Glen Coulthard (Dene), Roland Chrisjohn (Onyota’a:ka) and Sherri Young, and many others, reconciliation often functions hand-in-hand with the nation-state’s drive toward amnesia; furthermore, since there never was a historical moment of “conciliation,” reconciliation is beside the point. For scholars who critically engage with reconciliation as a way to talk about settler colonialisms, on the other hand, the key words of postcolonial theory—ambivalence, [End Page 57] negotiation, complicity, resistance, and so on—offer some useful conceptual tools to build an interpretive framework.2 This essay fleshes out the differences and overlaps between postcolonial and Indigenous nationalist critical approaches through an analysis of Tomson Highway’s Kiss of the Fur Queen and Joseph Boyden’s Three Day Road. I argue that bringing into dialogue these two approaches can create productive openings for thinking through the multiple and competing senses of what a politics of reconciliation entails. The two novels explore residential schools as part of a larger policy of assimilation and genocide through the interaction of two figures from Cree storytelling traditions, the Weetigo/windigo (a cannibal spirit) and Weesageechak (a ‘trickster’).3 Both Boyden (of Irish, Scottish, and Métis ancestry) and Highway (a Cree writer) associate the Weetigo with the invasive and spirit-devouring effects of residential school and other colonial institutions; Weesageechak’s role in “healing” from that inheritance, on the other hand, takes on a different form in each novel. The final scenes of Boyden’s novel suggest that a recovery of Cree traditions, through storytelling, ceremony, and connection to land, is necessary for healing; Highway’s novel, while also invested in such a recovery, further suggests that healing comes from artistically transforming those Cree traditions within a dynamic, intercultural context. I argue that the representation of the intimate enemies of Weetigo and Weesageechak in Highway’s Kiss of the Fur Queen and Boyden’s Three Day Road illuminates both the ruptures and the unexpected common ground between postcolonial and Indigenous nationalist approaches to reconciliation. I further suggest that a combination of both postcolonial and Indigenous nationalist perspectives may best do justice to the complexities of these novels and the conceptualizations of healing and reconciliation that these texts offer. Reconciliation: More Than One Approach Before engaging with Highway’s and Boyden’s novels, I want to establish the key historical and cultural contexts for the debates on healing and reconciliation. In this section I argue that the rifts in conceptions of reconciliation may offer useful critical leverage by which to engage with the different roles and responsibilities in initiating a program of social justice. Many critics have drawn attention to the problems with a state-imposed discourse of reconciliation that, with its implicit drive [End...

Philosophical Foundation and Constitutional Rejection in Hungary

There are internationally set criteria that apply in the case of a legacy of grave and systematic violations of human rights, generating obligations of the state towards the victims and society. They specify: (1) a right of the victim to see justice done, (2) a right to know the truth, (3) an entitlement to com- pensation and nonmonetary forms of restitution, as well as (4) a right to reor- ganized and accountable institutions. Facing the complete failure of imple- menting the first three points, one can claim that none of them has been ful - filled in Hungary since the fall of Communism, almost one quarter of a cen - tury ago. This paper analyses the context in which constitutional adjudication may confront certainty of law with the very idea of justice by putting an end to any progress of leaving the legacy of Communism behind. As a conse- quence, the Rule of Law becomes a mere simulacrum.

Justice in post-apartheid South Africa: Towards a Theology of Restitution

Justice in post-apartheid South Africa: Towards a Theology of RestitutionHaving dabbled with the metaphors of liberation, reconstruction and reconciliation, the time may have come for (South) African prophetic theology to seriously consider the metaphor of restitution. In this essay, the author outlines the contours of a theology of restitution. The starting point is the existing but mostly unspoken theologies for and against various forms of restitution. An exploration of the contours of a theology of restitution is conducted. In order to illustrate the tasks and challenges of a theology of restitution – the author refers to the parable of Lazarus and the rich man. For him a credible theology of restitution is a theology capable of restoring Lazarus before not after he dies.

Affirmative action as a form of restitution

Though the common sense defense of affirmative action (or “employment equity”) appeals to principles of restitution, philosophers have tried to defend it in other ways. In contrast, I defend it by appealing to the notion of restitution, arguing (1) that alternative attempts to justify affirmative action fail; and (2) that ordinary affirmative action programs need to be supplemented and amended in keeping with the principles this suggests.

Restitution as a Sanction in Juvenile Court

Over the past decade, restitution has assumed increasing significance as a sanction both in the juvenile and in the criminal justice system. The purpose of this article is to examine the current trend toward utilizing restitution from a critical and historical perspective. Current restitution policies and practices are placed within the context of three major trends in justice: (1) the individualization of the juvenile court; (2) the growing concern with the victims of crime, and (3) the blurring of traditional distinctions between criminal and tort law. Restitution as a sanction is evaluated in the context of these three developments, and the contemporary form of restitution is compared with its historical predecessors.

The Requirement of Restitution for Juvenile Offenders

Abstract A growing awareness of and concern about rapidly increasing juvenile crime rates coupled with a revitalized concern for victims have generated a disillusionment with many traditional and diversionary methods of handling juvenile offenders. Restitution is regarded by many as the most promising, logical, and effective means of achieving the dual goals of deterrence and punishment. Surveys suggest strong support for juvenile restitution and several stales have recently enacted or amended juvenile restitution statutes. A review of slate juvenile codes reveals that a majority of states generally permit courts to require restitution as a disposition and to determine the amount and form of reparation. A survey of juvenile court judges and probation officers representing fourteen states which permit some form of restitution revealed that about one-third of the courts require it often and two-thirds seldom or never require it. More than half regard it as an effective deterrent. Data shows that the most co...

Hampshire House Workshops

During the nineteenth century the Christian conscience, what was left of it, had become increasingly uneasy by the sight of great poverty and great wealth existing side by side, by the problems presented in the fast growing industrial areas, by the sense that the poor had been dispossessed and that some form of restitution was due to them. John Buskin preached, William Morris practised, one or two rich young men took our Lord at his word and sold all that they had, many of the well-to-do gave much of their time and energy in ‘Social Service’, and men of good will supported charitable works according to their means. The ‘gay nineties’ saw the opening of many clubs for working men in poor parishes, the universities had their settlements or missions, and the late Canon Bartlett founded Toynbee Hall (Whitechapel) with a well planned educational objective. The normal cleavage of society into rich and poor had not then been recognised as constituting two distinct classes —employer and employed—with differing responsibilities to the State; that fateful distinction of status only reached the statute book with the passing of the insurance Act.